United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DISMISSING WITH
PREJUDICE ALL CLAIMS AGAINST T C N INCORPORATED
NUFFER UNITED STATES DISTRICT JUDGE
T C N Incorporated (“TCN”) filed a motion
(“Motion”) to dismiss Plaintiff Clinton Strange's
First Amended Complaint under Fed.R.Civ.P. 12(b)(6) for failure
to state a claim on which relief can be granted. Because the
Motion presents matters outside the pleadings, which are not
excluded, it is treated as a motion for summary judgment
under Fed.R.Civ.P. 56.Strange has failed to file a response to
the Motion, and the time to do so has expired.
there is no genuine dispute as to any material fact and TCN
is entitled to judgment as a matter of law, the Motion is
on the record and evidence presented, there is no genuine
dispute as to any of the following material facts.
A. Hill, who is not a party to this case, obtained a credit
card from Defendant Celtic Bank Corporation
(“Celtic”). At that time, she entered into an
agreement with Celtic and its agent, Defendant Continental
Finance Company LLC (“Continental”), governing
use of the card. In that agreement, Hill expressly
consented and authorized Celtic and Continental to contact
her by telephone.
Hill defaulted on the debt she incurred. Celtic and
Continental “consigned” her debt to Defendant
Eastpoint Recovery Group LLC (“Eastpoint”) for
collection. In an attempt to collect the debt,
Eastpoint tried calling Hill on the telephone. Four of these
calls were accidentally placed to Strange's cellphone No.
because it was in Hill's contact information from Celtic
and Continental. Two of these four calls were automatic
“robocalls, ” which Eastpoint generated on May 30
and June 5, 2018, through software that TCN
created. Eastpoint's use of TCN's
software was entirely self-directed. TCN played no role in how
or when Eastpoint used the software or regarding whom
Eastpoint contacted with it.
the robocalls that Strange received from Eastpoint lasted 51
seconds and stated:
Hi. Hi, this is an important message for Patricia A. [Hill].
If this is not Patricia A. [Hill], then please hang up now.
By remaining on this call you have acknowledged that you are
in fact Patricia A. [Hill]. We are calling from East Point
Recovery Group. This call is an attempt to collect a debt,
and any information obtained will be used for that purpose.
Patricia A. [Hill], please call me back at
1-8-0-0-4-5-9-2-4-1-7, with your reference No.
does not know Hill. He has never authorized Celtic,
Continental, Eastpoint, or TCN to contact him. He does not
owe any debt to Celtic, Continental, Eastpoint, or
TCN. And he “does not like to receive
automated debt collection calls that do not pertain to
him.” “These calls deplete [the] battery
on his cellphone”; “cause his phone to display a
voice mail message in the call log”; “deplete
[the] memory storage capacity on his cellphone”;
“take up space in his voicemailbox”; and require
him to “utilize a measurable amount of his Physical and
Mental Energy to ‘unlock' his phone, and review and
delete the contents of the unwanted Debt Collection
6, 2018, Strange, for the first time, asked Eastpoint to stop
calling him. Upon receiving this request, Eastpoint
immediately removed Strange's No. from its system and
never called him again. All of the calls to Strange had been
entirely accidental and unintentional. At the time
they were made, Strange's No. did not appear in the
national do-not-call registry.
judgment is appropriate if “there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” A dispute is
“genuine” if “there is sufficient evidence
on each side so that a rational trier of fact could resolve
the issue either w a y. ” A fact is
“material” if “it is essential to the
proper disposition of [a] claim.” In ruling on
a motion for summary judgment, the evidence and all
reasonable inferences are viewed in the light most favorable
to the nonmoving party.
action, Strange asserts claims against TCN for violation of
the Fair Debt Collection Practices Act (“F D C PA
”) and Telephone Consumer Protection Act
(“T C PA ”).Both claims fail as a matter of law.
FDCPA claim fails as a matter of law.
FDCPA's purpose is “to eliminate abusive debt
collection practices by debt collectors.” Among other
things, it prohibits “[c]ausing a telephone to ring or
engaging any person in telephone conversation repeatedly or
continuously with intent to annoy, abuse, or harass any
person at the called number.” A debt collector who
fails to comply with the FDCPA may be liable “to any
person” for “actual damage sustained by such
person as a result of such failure, ” plus
“additional damages . . . not exceeding $1, 000”
“in the case of any action by an
individual.” “In determining the amount of
liability in . . . any individual action, ” courts must
consider “the frequency and persistence of
noncompliance by the debt collector, the nature of such
noncompliance, and the extent to which such noncompliance was
intentional.” “A debt collector may not be held
liable in any action brought under [the FDCPA] if the debt
collector shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona fide
error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such
error.” Liability under the FDCPA is a legal
undisputed that all of the calls Strange received from
Eastpoint were entirely accidental and
unintentional. When Eastpoint became aware of its
error, it stopped calling Strange. Because the calls that
were placed to Strange's cellphone No. were not made with
intent to annoy, abuse, or harass anyone at that number, his
FDCPA claim fails as a matter of law.
TCPA claim fails as a matter of law.
TCPA prohibits “mak[ing] any call (other than a call
made for emergency purposes or made with the prior express
consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice . . . to
any telephone No. assigned to a . . . cellular telephone
service.” It is undisputed, however, that TCN did
not make any call to Strange. Eastpoint did. Although
Eastpoint placed two calls to Strange using TCN's
software, Eastpoint's use of TCN's software was